After 7 years, Elizabeth Barrow had her day in court

On September 24, 2009, Elizabeth Barrow, at age 100, was killed in her nursing home bed, a result of strangulation and suffocation; allegedly by her roommate. Seven years later, her wrongful death lawsuit against the nursing home has finally settled.

Elizabeth Barrow was born in New Bedford, Massachusetts and was married to Raymond Barrow for 65 years. Known to most as “Betty”, she was a gentle, friendly, fun lady, whom everyone loved. She worked at a high school cafeteria as a lunch lady, and served thousands of kids over her tenure. Raymond was a WWII veteran and owned a convenience store and service station in New Bedford.

When Raymond became ill in his later years and needed the skilled care of a nursing home, he chose Brandon Woods of Dartmouth. Never separated since their wedding day, Betty moved into the nursing home as a resident to be with her husband. The couple shared room 227, where they spent every moment together. Raymond passed away in July 2007, and Betty stayed on as a resident of the nursing home, in the same room that was their home for the last year and a half.

Shortly after her husband passed away, Betty was assigned a new roommate, Laura Lundquist, so that she could continue to stay in room 227. Although the two women seemed to get along, there were episodes of roommate bickering and several reported instances of Laura being jealous because Betty had more visitors, was getting more attention, and had the bed close to the window.

When roommate changes were discussed, Betty was told that if she wanted a new roommate, she will have to move from room 227. Not wanting to leave the room where she spent the last months with her husband, Betty decided to remain in her current room. For the next eleven months, things were mostly peaceful. On the evening of September 23, 2009, however, there was a situation of escalating behavior–Ms. Lundquist began lashing out towards the staff and towards Betty. The event required intervention, supervision, and assistance for both Laura and Betty. The next day, Betty was found by a nursing assistant, dead in her bed, with a plastic bag over her head.

The medical examiner performed an autopsy on Betty and concluded that her death was a homicide, “STRANGLED AND SUFFOCATED BY OTHER”. In addition to the strangulation, the medical examiner found that Betty’s body showed signed of blunt force injuries to the head, torso, arms, and legs. Three months later, Laura Lundquist was indicted for second degree murder. Subsequently, she was deemed incompetent to stand trial and was committed to Taunton State Hospital.

After investigation by our office into whether Betty’s death was foreseeable and therefore preventable, we filed a wrongful death lawsuit on behalf of Betty’s son, Scott Barrow. The lawsuit was filed against the nursing home and its management company, and the nursing home administrator and staff. The lawsuit’s main allegations were that the staff were not adequately trained to deal with the situation they were faced with that night, nor were they supervised, nor did they follow or know to follow the facility’s safety policies and procedures. The Plaintiff further alleged that there just was not enough qualified staff in the building.

Within days of filing the lawsuit, the nursing home, through its lawyers, filed court pleadings to force the case to binding arbitration, a form of dispute resolution that takes place outside of a courtroom without a jury. The nursing home’s position was that Scott had signed an arbitration document when his parents were admitted to the nursing home, which they claimed was a binding enforceable agreement and waived the right to a trial by jury.

We fought against the use of arbitration, because it is our position that arbitration clauses in nursing home agreements are unconstitutional, unconscionable, unfair, are signed under duress, and can be considered fraudulent inducement. Scott Barrow had neither a power of attorney nor health care proxy for his mother because, even at the age of 100, she was competent, lucid, and could freely move on her own.

A Superior Court justice allowed the nursing home’s motion, forcing the case to arbitration. The case was arbitrated and the arbitrator, who does repeat business with the defense and insurance companies, found in favor of the defendants. We brought Betty’s case to the Massachusetts Appeal Court, who then ruled in favor of Mr. Scott Barrow. The arbitration decision was vacated and the case was remanded back to the Superior Court for a trial by jury, allowing the members of the community, a jury, to decide.

Once the case was remanded, the nursing home attempted two more times to dismiss the case. First, they filed a motion to dismiss, which failed. They then filed a motion for summary judgment to remove the management people and the punitive damages claims, which also failed. The case was assigned for trial on September 12, 2016, in New Bedford Superior Court, the same courthouse that Lizzie Borden was tried and acquitted in 1893.

On September 12th and 13th of this year, the jury of fourteen was selected. Then, moments before opening statements were to be given, the case settled. The entire process had taken seven years.

Betty’s story made it to Washington D.C. and on September 28, 2016, the Centers for Medicare and Medicaid Services implemented a new rule that bars any nursing home that receives federal funding from requiring that its residents resolve any disputes in arbitration. Betty’s story was part of this change.

The new CMS rule still allows arbitration, but only as an option after a dispute has occurred and only if a resident or the resident’s representative agrees to enter into arbitration to resolve the dispute. Facilities can no longer require that residents sign binding arbitration agreements as a condition of admission to the nursing home; this is what occurred in Betty Barrow’s situation. These rule changes are a step towards protecting the rights of nursing home patients and we applaud the decision by CMS. It is our hope that the changes will reduce the amount of time that nursing home residents and their families have to endure, just to receive justice in cases of neglect, abuse, and wrongful death.

I have long been a proponent of removing arbitration clauses from the resident agreements used by nearly all nursing homes and assisted living facilities as part of the admission application process. These “take it or leave it” provisions are often buried in the fine print of the contracts signed by incoming patients. It’s only after tragic events have occurred do many people realize that the binding arbitration clause require that claims against the nursing home (even for abuse and neglect) must be brought before a private arbitration provider chosen by the nursing home. Their inclusion has delayed justice in many cases involving abuse, neglect, and wrongful death. And one of our cases, that was just recently settled, highlights the type of delays that arbitration clauses frequently create.

Scott Barrow’s goal, by filing the law suit, was to bring attention to the quality of care and the quality of life that is being provided, or not provided by nursing homes in our communities. Mr. Barrow was not motivated by money, but rather that he did not want another family to experience what his family experienced. He believed by bringing this lawsuit that it would help improve the quality of care at Brandon Woods and something like this would not happen again, at ANY nursing home. Although a verdict, which means truth, would be the ultimate deterrence of bad conduct to this nursing home and all others, the settlement and the story in this case accomplished the same goal. A problem that most of these type of cases has is that most nursing homes have liability insurance for negligence cases like this. An insurance company takes over and controls the money. A verdict against a nursing home, would be paid for by the insurance company and not by the nursing home.